RATIONALISING AND SIMPLIFYING THE PRESUMPTION OF SIMILARITY OF LAWS

• Author: TAN Yock Lin BSc (London), Dip Econ Devt, BA, BCL (Oxford); Professor, Faculty of Law, National University of Singapore.
• Date: 01 December 2016
• Published date: 01 December 2016

A party who has not pleaded foreign law may not “rely” on foreign law. On the other hand, a party who has pleaded foreign law may rely on the presumption of similarity of foreign law to the substantive lex fori. The result is that if the plaintiff has pleaded foreign law, his claim based on foreign law will be dismissed only if the substantive lex fori is in fact unfavourable or the party-opponent proves that the foreign law in fact does not support the claim. These rules are almost trite but the exceptions to the rules are difficult to comprehend by reference to principle. This article examines the rationales of these two rules and argues that a coherent and rational classification is possible when the presumption of similarity is kept out of the pleading rule and its scope modulated in the light of developments in the doctrine of forum non conveniens.

I. Introduction

1 In the common law conflict of laws, the broad subject of proof of foreign law yields considerable confusion upon closer scrutiny. Rules which are distinct remain conflated and hard to penetrate despite the long passage of time.1 One is ostensibly a rule of pleading which is typically stated as follows: foreign law must be pleaded as a fact if it is to be relied on.2 The second, ostensibly a rule of evidence, is that where the contents of foreign law are not proved or not sufficiently proved, they

are presumed identical or similar to the substantive lex fori.3 The third rule is a tentative choice of law rule that parties to a dispute may agree to have their dispute governed by the lex fori whatever other law may be designated by the forum's choice of law rules.4 The fourth rule is that unless a choice of law rule is mandatory, a court is not obliged ex officio to raise the applicability of foreign law and to reject a party's pleaded or proved foreign law which is not the mandatory foreign law. For reasons of space, the third rule will be omitted while for reasons of its rarity, the last-mentioned rule will not be considered explicitly. These omissions do not affect the arguments in this article.

2 In what follows, the arguments first expose at least two conflations in the subject of proof of foreign law; namely that between pleading and the nature of foreign law as fact; and second, between the evidential burden of going forward with proof of foreign law and the legal burden of persuading the court as to the contents of foreign law. The article then argues that rules of pleading indistinguishably require foreign law to be pleaded in order to avoid party-opponent surprise and satisfy the court as to the existence of jurisdiction and justiciability. Consequently, characterisation of foreign law as a fact for the purposes of pleading introduces an unnecessary, unhelpful and confusing layer of rationalisation. Furthermore, conflicts rules are neutral jurisdiction-selecting rules. There is no conflicts rule that the court always applies the lex fori until and unless it is demonstrated that the rules of conflict require the court to apply foreign law. So there is no rule arising from the intrinsic nature of conflicts rules that a party relying on foreign law must plead and prove it. Rules of pleading and as to how foreign law is to be proved are qualitatively different in purpose and functionality and ought to remain distinct. Rules of pleading open the way to adduction of evidence of foreign law but the presumption of similarity of laws as a rule of evidence stipulates the quality of evidence which commands judicial fact-finding action. That presumption should be operative only at trial at the behest of the party who has pleaded foreign law and bases his claim or defence on it. It is demonstrated that when conflation between pleading and proving foreign law is eliminated, the so-called exceptions to the presumption of similarity of laws assume greater clarity and coherence. First, the presumption will be irrelevant where the court is exercising the discretion to stay proceedings on forum non conveniens grounds or the

court's O 11 jurisdiction5 is invoked. The exceptions to the presumption which are supposed to apply in these matters are not in truth exceptions but stand for the irrelevance of the presumption. Second, with cases on matters of jurisdiction out of the way, a more coherent thread running through the remaining exceptions which relate to trial begins to be discernible. These exceptions may now generally be formulated as calling for withdrawal of the presumption from the party with the legal burden to prove the affirmative in his cause who has pleaded foreign law but does not act in good faith.

II. Conceptual problems with the popular formulations

3 The conflations in the subject are very conspicuous in an influential exposition in which the two above-mentioned rules are substantially unified by teasing out four “principles”: (a) foreign law is a fact and as such beyond the scope of judicial notice; (b) since foreign law is a fact, it must be formally proved, being unknown and unknowable to the judge; (c) since foreign law is a fact, one who relies on it must expressly plead it; but (d) if foreign law is not pleaded or is pleaded but not adequately proved, the court will apply the substantive lex fori“for knowing only [that law] it presumes foreign law to be the same”.6 This clarification is purportedly an important derivation of both the pleading rule and the presumption of similarity from characterisation of foreign law as a fact. It is appropriate that the difficulties in deriving the rules from a factual characterisation of foreign law first be called to attention.

4 The first and second “derivative” principles in the exposition add a motivational consideration and crucial foundational nuance to the rules. It seems, however, to be very ambiguous and conflated. When the principle is expressed in terms that as foreign law is a fact, no judicial notice is possible, this either unhelpfully begs the question or positively overstates the position. The fact that foreign law is a fact means that in the absence of evidence a judge must not profess self-informed or private knowledge of the contents of the foreign law. However, that does not entail that as an abstract proposition he cannot take judicial notice or dispense with proof or evidence of the fact even though the nature of the foreign law, such as its notoriety, or other general considerations, would justify the court in declaring its truth without requiring evidence from the party who is obliged to prove it. On the other hand, when it is posited that foreign law is a fact and must be formally proved because it is actually or presumptively unknown and unknowable by judges, the

premises of factual judicial ignorance obviously are false. There will be foreign laws that are notorious in fact and those that are not. The principle cannot simply assert that foreign laws can never actually be notorious and consequently foreign law is a fact of which judicial notice cannot be taken.

5 To avoid unreality or circularity, the principle must be re-conceptualised as a completely normative postulate that judges should be deemed to be ignorant and precluded from taking judicial notice of foreign law no matter how notorious. The third principle is then arrived at, that as a result, foreign law must be pleaded as a fact. This postulate tying pleading of foreign law to judicial ignorance or denial of judicial notice, however, is not a strictly correct usage of the evidential concept of judicial notice.7 There is no entailment that a party must not plead that which the courts know or must plead that which the courts do not know. A party need only plead facts in issue or necessary facts and need not plead facts relevant to or bearing upon facts in issue even though the courts do not know of them until informed of them at trial. Numerous instances may also be found of the courts' taking judicial notice at trial of relevant facts which need not be and have not been pleaded. Perhaps more to the point, it has never been doubted at any time that a party may decide whether he will plead or refrain from pleading foreign law.8 This liberty is his without regard to whether or not the judge is ignorant or cognisant of foreign law. Judicial ignorance cannot explain why foreign law is not a fact in issue and not in any other way essential to a claimant's pleadings of a cause of action.9 However, what is true is that where a necessary fact or ground of defence is a matter of common knowledge (so that it is not only known to the judge but also to the party-opponent), it need not be pleaded.10 The court may in the absence of pleading ex officio notice the necessary fact or ground of defence. Other than this special usage of judicial notice, the notion of

judicial notice or ignorance of foreign law is extraneous to the question of whether a person who wishes to adduce evidence of it should first plead it. The answer in the first place depends on whether foreign law is to be regarded as a necessary fact or ground of defence or a necessary matter of law. The normative postulate that foreign law can never be common knowledge does not prove whether it is necessary to be pleaded or merely optional.

6 There is another difficulty when the third principle is juxtaposed with the fourth. The proposition that he who wishes to rely on foreign law must plead it is ambiguous. “Relying on foreign law” could mean that the relying party is basing a claim on it so that the court should affirm in his favour the legal significance of the pleaded facts in issue which will necessarily and sufficiently constitute legal actionability or non-actionability. The rules of pleading also require the pleading of denial of allegation or controverted allegation. So where the plaintiff omits to plead foreign law, as he may since foreign law actionability is not a fact in issue, the defendant may plead foreign law generally or in particular...